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[2025] NSWSC 1467
General information, not legal advice.
Supreme Court of NSW
2025-12-05
Nixon J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of Clear Skies Corp Pty Ltd (in Liquidation) [2025] NSWSC 1467
Hearing dates: 27 November 2025
Date of orders: 5 December 2025
Decision date: 05 December 2025
Jurisdiction: Equity - Corporations List
Before: Nixon J
Decision: 1. The Plaintiffs’ Notice of Motion filed 28 August 2025 be dismissed.
2. The Plaintiffs pay the Underwriters’ costs of the Notice of Motion.
3. The proceeding be listed for directions in the Corporations List on 15 December 2025.
Catchwords: INSURANCE – PROCEDURE – Civil – whether leave should be granted to amend pleading to proceed against underwriters pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – exclusion clauses – whether underwriters can disclaim liability – discretion of the Court – leave refused.
Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 4, 5
Corporations Act 2001 (Cth) ss 9, 95, 180-182, 588G, 588H, 588J, 588M
Insurance Contracts Act 1984 (Cth) s 40
Cases Cited: AIG Australia Limited v Kaboko Mining Limited [2019] FCAFC 96
Avant Insurance Ltd v Burnie [2021] NSWCA 272
Clark v Avant Insurance Ltd [2022] NSWCA 175
Classics for a Cause Pty Ltd v Grays Ecommerce Group Ltd [2023] NSWSC 967
DIF III – Global Co Investment Fund LP v DIF Capital Partners Ltd [2020] NSWCA 124
Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Energise Fitness Pty Ltd v Vero Insurance Ltd [2012] NSWCA 213
Hakea Holdings Pty Ltd v Neon Underwriting Ltd [2023] FCAFC 34
HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296
Liberty Mutual Insurance Company Australian Branch t/as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126
Quintano v BW Rose Pty Ltd [2008] NSWSC 793
Star Entertainment Group Ltd v Chubb Insurance Australia Ltd [2022] FCAFC 16
Todd v Alterra at Lloyd’s Limited (2016) 239 FCR 12; [2016] FCAFC 15
Category: Procedural rulings
Parties: Simon John Thorn in his capacity as liquidator of Clear Skies Corp Pty Ltd (in liquidation) (First Plaintiff)
Clear Skies Corp Pty Ltd (Second Plaintiff)
Robert Price (First Defendant)
Charles Orren (Second Defendant)
Dual Australia Pty Ltd (Third Defendant)
Hardy (Underwriting Agencies) Limited, Managing Agent for and on behalf Lloyd’s Syndicate HDU 382; Liberty Managing Agency Limited, for an on behalf of Syndicate 4473; and Asta Managing Agency, acting for an on behalf of Everest Syndicate 2768 (Proposed Third Defendants)
Gow-Gates Insurance Brokers Pty Ltd (Fourth Defendant)
Representation: Counsel:
A Wilson (Plaintiffs/Applicants)
S Philips (Third Defendant/Proposed Third Defendants/Respondents)
A Byrne (Fourth Defendant)
Solicitors:
Turks Legal (Plaintiff)
Wotton Kearney (Third Defendant/Proposed Third Defendants/Respondents)
DLA Piper (Fourth Defendant)
File Number(s): 2025/173746
By Notice of Motion filed 28 August 2025, the Plaintiffs seek:
leave to file an Amended Statement of Claim (Proposed ASOC); and
leave, pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (TPC Act), to claim against the proposed Third Defendant (the Underwriters).
The First Plaintiff is the Liquidator of the Second Plaintiff, Clear Skies Corp Pty Ltd (in liquidation) (the Company). The Company traded as a member of a corporate group which included at least ten other companies (the Group).
The First Defendant, Mr Robert Price, was the director of the Company.
The Plaintiffs allege that the Second Defendant, Mr Charles Orren, was a “shadow director” of the Company, such that he was a director within the meaning of s 9 of the Corporations Act 2001 (Cth).
The Plaintiffs allege that each of Mr Price and Mr Orren:
failed to prevent the Company from incurring debts while insolvent, and thereby contravened s 588G(2) of the Corporations Act (Insolvent Trading Claims); and
breached his duties as a director of the Company, in contravention of ss 180 to 182 of the Corporations Act (Breach of Duty Claims).
The current form of the Statement of Claim:
names the Third Defendant as Dual Australia Pty Ltd;
alleges that, on 11 July 2019, the Company (as a member of the Group) entered into a Management Liability Insurance Policy with Dual for the period 30 June 2019 to 30 June 2020 (the Policy); and
pleads a claim against Dual pursuant to s 4 of the TPC Act.
Dual has contended, and the Plaintiffs concede, that the proper defendants, pursuant to the TPC Act, are the underwriters of the Policy, namely:
Hardy (Underwriting Agencies) Limited, Managing Agent for and on behalf of Lloyd’s Syndicate HDU 382;
Liberty Managing Agency Limited, for and on behalf of Syndicate 4473; and
Asia Managing Agency, acting for and on behalf of Everest Syndicate 2768.
In addition, and to the extent that the Underwriters are not liable to indemnify Mr Price and Mr Orren under the Policy, the Plaintiffs bring claims in negligence against the Fourth Defendant, Gow-Gates Insurance Brokers Pty Ltd, being the former insurance broker for the Company.
Mr Orren and Gow-Gates consent to the Proposed ASOC. Mr Price has not taken any active role in the proceeding.
The Underwriters oppose the relief sought in the Notice of Motion.
In particular, the Underwriters contend that leave must be refused pursuant to s 5(4) of the TPC Act, as the Underwriters are entitled to disclaim liability for the Insolvent Trading Claims and the Breach of Duty Claims under the Policy. That is primarily because:
both sets of claims come within the terms of clause 4.11 of the Policy, which excludes cover for any claim arising from or in any way whatsoever connected with the insolvency of the Company; and
in addition, the Breach of Duty Claims were not notified within the Policy Period.
(1) If an insured person has an insured liability to a person (the claimant), the claimant may, subject to this Act, recover the amount of the insured liability from the insurer in proceedings before a court.
(2) The amount of the insured liability is the amount of indemnity (if any) payable pursuant to the terms of the contract of insurance in respect of the insured person’s liability to the claimant.
(3) In proceedings brought by a claimant against an insurer under this section, the insurer stands in the place of the insured person as if the proceedings were proceedings to recover damages, compensation or costs from the insured person. Accordingly (but subject to this Act), the parties have the same rights and liabilities, and the court has the same powers, as if the proceedings were proceedings brought against the insured person.
insured liability means a liability in respect of which an insured person is entitled to be indemnified by the insurer.
insured person means a person who is, in respect of a liability to a third party, entitled to indemnity pursuant to the terms of a contract of insurance, and includes a person who is not a party to the contract of insurance but is specified or referred to in the contract, whether by name or otherwise, as a person to whom the benefit of the insurance cover provided by the contract extends.
liability means a liability to pay damages, compensation or costs.
(1) Proceedings may not be brought, or continued, against an insurer under section 4 except by leave of the court in which the proceedings are to be, or have been, commenced.
(2) An application for leave may be made before or after proceedings under section 4 have been commenced.
(3) Subject to subsection (4), the court may grant or refuse the claimant’s application for leave.
(4) Leave must be refused if the insurer can establish that it is entitled to disclaim liability under the contract of insurance or under any Act or law.
There was no dispute regarding the relevant principles for an application for leave under s 5 of the TPC Act.
In Avant Insurance Ltd v Burnie [2021] NSWCA 272, McCallum JA (as her Honour then was) and Simpson AJA observed at [8]:
“An applicant for leave under s 5 of the Third Party Claims Act must establish three elements:
(1) that there is an arguable case against the holder of the insurance policy (in this case, Mr Blackstock);
(2) that there is a reasonable possibility that the holder of the insurance policy will be unable to satisfy any judgment;
(3) that there is an arguable case that the holder of the insurance policy would, if found liable to the plaintiff, be entitled to indemnity under the policy; or, put another way, that any liability of the holder of the insurance policy to the plaintiff/claimant is, in the language of s 4, an ‘insured liability’: see Guild Insurance Ltd v Hepburn [2014] NSWCA 400 at [3] per Macfarlan JA (in respect of the predecessor of the Third Party Claims Act, the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)).”
Even if these requirements are met, there remains a residual discretion to refuse leave: Clark v Avant Insurance Ltd [2022] NSWCA 175 at [28] (per Meagher and Beech-Jones JJA and Lonergan J).
The Court is entitled to consider evidence, as well as the pleadings, in determining whether the applicant for leave has an arguable case that the insured is liable to it, and whether there is an arguable case that any such liability is an insured liability under the relevant policy: Energise Fitness Pty Ltd v Vero Insurance Ltd [2012] NSWCA 213 at [57]-[61] (per Campbell JA, Allsop P (as his Honour then was) and Meagher JA agreeing).
The principles applicable to the construction of policies of insurance are those governing the construction of commercial contracts: Liberty Mutual Insurance Company Australian Branch t/as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 at [151]. Those principles require the language used by the parties to be interpreted objectively, in the context of the surrounding circumstances known to the parties at the time of the transaction, and the purpose or object of the transaction evident from those matters: Star Entertainment Group Ltd v Chubb Insurance Australia Ltd [2022] FCAFC 16 at [8].
Preference is to be given to a construction supplying a congruent operation to the various components of the whole: Todd v Alterra at Lloyd’s Limited (2016) 239 FCR 12; [2016] FCAFC 15 at [42] (per Allsop CJ and Gleeson J). The working out in a coherent and congruent fashion of the operation of a market specific insurance policy requires a businesslike interpretation to bring about a commercial result based on what a reasonable business person would have understood the policy to mean: Liberty Mutual Insurance at [152], citing Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] (per French CJ, Hayne, Crennan and Kiefel JJ).
In Liberty Mutual Insurance at [152], the Full Federal Court observed that:
“The principle that a policy is to be construed so as to avoid it ‘working commercial inconvenience’ … and so as to bring about commercial efficacy and reflect common sense … is to be given concrete operation, not passing lip-service. To the extent that words used in an insurance policy have the capacity for broader or narrower operation, such constructional choice or ambiguity will be resolved by appreciating the context, including the market, in which the parties are operating, and the extent to which a reading of the words may produce commercial inconvenience or commercial efficacy as part of the ascription of meaning that would be made by a reasonable businessperson considering the language used, the surrounding circumstances known to the parties and the commercial purpose or objects of the policy as a whole to be secured: ... It should always be recalled, however, that a broad or a narrow meaning of a policy may only reflect the breadth or the narrowness of cover that has been purchased by the premium …”
At the same time, reasoning by reference to commerciality has its limits. Care must be taken to ensure that it is the evident commercial object that is being given effect, recognising that minds may differ as to the commerciality of the outcome: Star Entertainment Group at [11].
Where a question arises as to the applicability of an exclusion, “that exclusion must be construed in a way that does not negate (or cause to be ‘inappropriately circumscribed’) the indemnity provided by the insurance”: Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance [2018] NSWCA 100 at [125] per Barrett AJA (Meagher and White JJA agreeing). Accordingly, the insuring clause and any exclusion clause must be read together in a harmonious way so that due effect is given to both, and the right conferred by the former is not rendered nugatory by the construction adopted for the latter: Hakea Holdings Pty Ltd v Neon Underwriting Ltd [2023] FCAFC 34 at [103] per Jackman J (in separate reasons, Colvin and Button JJ referred to, without any disagreement, the principles of construction set out by his Honour: at [1]).
In Legal & General Insurance Australia Limited v Eather (1986) 6 NSWLR 390 at 393, Kirby P observed that: “If one construction strikes fundamentally at the purpose of the policy, which is to spread the risk insured against, whilst another construction that is reasonably available would effect that purpose, the latter will be preferred”. In the same decision, McHugh JA (at 406) rejected a construction on the basis that “it would defeat the commercial purpose of the contract of indemnity if the wording of the condition operated so as to take away an important part of the basis of the indemnity itself”.
In HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296 at [31], Meagher JA and Ball J observed that although the contra proferentem rule is now generally regarded as a doctrine of last resort, it continues to have a role to play in insurance and other standard form contracts.
It follows, from the principles set out above, that an exclusion clause is to be construed according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving weight to the context in which the clause appears including the nature and object of contract, and, where appropriate, construing the clause contra proferentem in the case of ambiguity: Hakea Holdings at [104].
The Insolvent Trading Claims are pleaded as follows in the Proposed ASOC:
each of Mr Price and Mr Orren had, as a director of the Company, a duty to prevent insolvent trading by the Company (Proposed ASOC, [7], [18]);
in the period from 1 January 2018 to 23 July 2019, the Company incurred the Debts in Schedule A to the Proposed ASOC (which total $2,563,344.36), at a time when the Company was insolvent within the meaning of s 95A of the Corporations Act, or became insolvent by reason of incurring the Debts or some of them (Proposed ASOC, [8]-[9], [19]-[20]);
at the time of incurring each of the Debts, there were reasonable grounds for suspecting that the Company was insolvent or likely to become insolvent (Proposed ASOC, [10], [21]);
at the time of incurring each of the Debts:
(a) each of Mr Price and Mr Orren was aware that there were reasonable grounds for suspecting the Company was insolvent; and (b) further, or alternatively, a reasonable person in the position of each of Mr Price and Mr Orren would have been aware that there were reasonable grounds for suspecting that the Company was insolvent; and (c) notwithstanding that, Mr Price and Mr Orren failed to prevent the Company from incurring each of the Debts (Proposed ASOC, [11]-[12], [22]-[23]);
“We will provide cover to the extent described in this policy during the period of insurance, subject to the terms, conditions, exclusions and limitations set out in the policy.”
Words shown in bold in the Policy are defined terms. “We” is defined as meaning Dual as agent of the Underwriters (cl 9.53). “Period of insurance” is defined as the period from 30 June 2019 to 30 June 2020 (cl 9.35; and Schedule, item 3).
There was no dispute that the Insolvent Trading Claims were notified to Dual within the period of insurance.
Clause 1.1 of the Policy provides as follows:
“We agree to pay on behalf of each insured person all loss on account of any claim for any wrongful act or employment practice breach for which the company has not indemnified or agreed to indemnify the insured person.”
“Insured person” is defined as including “any past, present or future director, shadow director, … or any natural person who by virtue of any applicable legislation or law is deemed to be a director or officer of the company” (cl 9.25(a)). “The company” is defined as including each of the entities specified in Item 2 of the Schedule (cl 9.6(a)). The Second Plaintiff (the Company) is one of those entities. Accordingly, Mr Price was an “Insured person”; and, if it is established that Mr Orren was a “shadow director” of the Company, it will follow that he, too, is an “Insured person”.
A “claim” is defined as including, relevantly, a “civil proceeding, or written demand for compensation or damages” (cl 9.5); and a “wrongful act” is defined in cl 9.54 as including:
“any alleged breach of duty, breach of trust, neglect, error, omission, misstatement, misleading statement, or other act by:
(a) any insured person, individually or otherwise, solely because of their status as such and in the course of his or her duties to the company …”
“Section 4: What we do not cover: General Exclusions
The exclusions in this Section apply to Insuring Clauses 1.1-1.2(c) and 1.2(e) and the Additional Benefits relating to those Insuring Clauses. We will not cover the insured for or in connection with:
…
4.11 Insolvency
any claim arising from or in any way whatsoever connected with the insolvency, liquidation, bankruptcy, receivership or administration of the company, any subsidiary or any associated company, its actual or alleged inability to meet any or all of its debts as and when they fall due.”
The Plaintiffs submitted that it appears that a word or words were missing from clause 4.11 and, in particular, from between the words “any associated company” and the words “its actual or alleged inability to meet any or all of its debts as and when they fall due”.
It is plain from the text and sense of clause 4.11 that the various matters referred to in that clause are to be read disjunctively, such that the final words of the clause (commencing with “its actual or alleged inability…”) are to be read as if preceded by the word “or”. The solicitor for the Plaintiffs, Mr Lachlan Wilson, acknowledged this in a letter sent to Dual’s solicitor on 9 September 2021, stating that it was the Plaintiffs’ position that the word “or” was missing from between those words, and adding that this was “the only sensible interpretation of that clause”.
Despite this, the Plaintiffs contended that the final phrase of clause 4.11 “qualified” the rest of the clause. The submission was put as follows:
“Within clause 4.11 the words its actual or alleged inability to meet any or all of its debts as and when they fall due qualify the whole of the exclusion so that for the exclusion to apply, the plaintiffs’ claim itself has to be with respect to the company’s actual or alleged inability to meet any or all of its debts as and when they fall due.”
This submission is not supported by the language of the clause. There is nothing to indicate that the final matter in that clause (namely, the Company’s actual or alleged inability to meet its debts) is to take any precedence over, or qualify, any of the other matters in clause 4.11.
Further, it is not clear in what way “the insolvency … of the company” might be “qualified” by the company’s “actual or alleged inability to meet any or all of its debts as and when they fall due” (given that a company is insolvent if it is not able to pay all its debts as and when they become due and payable).
The evident intention of including the last phrase of clause 4.11, which is to be read disjunctively with the preceding matters in that clause, is to ensure that a claim will be excluded not only if it arises from or is in any way whatsoever connected with the insolvency of the Company, but also if it arises from or is in any way whatsoever connected with the alleged inability of the Company to pay all its debts as and when they fall due.
In any case, even if the Plaintiffs’ interpretation were accepted, the Plaintiffs did not explain why the Insolvent Trading Claims were not (to use the words of the Plaintiffs’ submission that is quoted in paragraph [38] above) claims “with respect to the company’s actual or alleged inability to meet any or all of its debts as and when they fall due”.
In order for a “claim” to be excluded from cover under the Policy pursuant to clause 4.11, it is necessary to show that the “claim” has the requisite connection or relationship with one or more of the various matters specified in clause 4.11, namely, that it is a claim “arising from or in any way whatsoever connected with” one or more of those matters.
The meaning of a phrase such as “connected with” is not fixed, but must be identified by the context in which it is used: Classics for a Cause Pty Ltd v Grays Ecommerce Group Ltd [2023] NSWSC 967 at [154]. In that case, Rees J quoted with approval the observation of Applegarth J in Samways v Workcover Queensland [2010] QSC 127 at [73] that such words describe a spectrum of relationships between things, one of which is bound up with or involved in another.
It is plain from the adverbial phrase “in any way whatsoever”, which modifies “connected with”, that those words are intended to be given a broad interpretation, and are intended to extend to a connection which does not meet the description “arising from”.
In Quintano v BW Rose Pty Ltd [2008] NSWSC 793 at [7], Brereton J observed that the words “arising from” require that there be some causal connection between the claim and the specified matter, but the requisite nexus is satisfied by a less proximate relationship than that required by the phrase “caused by”. His Honour continued as follows (at [8]):
“It will satisfy the requirement that a claim ‘arise from’ a matter, if it originates in, springs from, or has its foundation in, that matter [cf Walton v National Employers’ Mutual General Insurance Association [1973] 2 NSWLR 73, 84]. A cause of action arises from a set of material facts, proof of which found the cause of action. Similarly, a claim arises from the underlying facts that, if established, justify the claim. In my view, a claim can be said to arise from a matter – at least – if it has a foundation in that matter, so that the matter is one of the underlying facts that, if they exist, together justify the claim.”
In the present case, the insolvency of the Company is not simply one of the underlying facts that, if they exist, together justify the Insolvent Trading Claims. It is a matter that is essential in order for any such claim to be brought.
Section 588G of the Corporations Act relevantly provides as follows:
(1) This section applies if:
(a) a person is a director of a company at the time when the company incurs a debt; and
(b) the company is insolvent at that time, or becomes insolvent by incurring that debt, or by incurring at that time debts including that debt; and
(c) at that time, there are reasonable grounds for suspecting that the company is insolvent, or would so become insolvent, as the case may be; and
(d) that time is at or after the commencement of this Act.
…
(2) By failing to prevent the company from incurring the debt, the person contravenes this section if:
(a) the person is aware at that time that there are such grounds for so suspecting; or
(b) a reasonable person in a like position in a company in the company's circumstances would be so aware.
Accordingly, it is essential, for the purposes of a claim pursuant to s 588G(2) of the Corporations Act, to establish that:
“the company is insolvent” at the time the relevant debt is incurred, “or becomes insolvent by incurring that debt, or by incurring at that time debts including that debt” (s 588G(1)(b));
“at that time, there are reasonable grounds for suspecting that the company is insolvent, or would so become insolvent, as the case may be” (s 588G(1)(c));
the director either “is aware at that time there are such grounds for so suspecting”, or “a reasonable person in a like position in a company in the company’s circumstances would be so aware” (s 588G(2)(a)-(b)).
The Insolvent Trading Claims pleaded in the Proposed ASOC address each of those elements of a claim under s 588G(2) of the Corporations Act (see paragraph [27] above).
In oral address, Counsel for the Plaintiffs accepted that insolvency was a necessary element of the Insolvent Trading Claims:
“[COUNSEL FOR PLAINTIFFS]: … The issue in Quintano goes to what your Honour was alluding to before that what is really the foundation is, is a circumstance of insolvency in a foundation for a claim, or does a claim have a different foundation. In the present case, there is a different foundation in the claims for breaches of directors' duties.
HIS HONOUR: Does that mean that you accept that the insolvency is a foundation of an insolvent trading claim?
[COUNSEL FOR PLAINTIFFS]: I say that it is an element of that.
HIS HONOUR: But how can you have an insolvent trading claim without insolvency?
[COUNSEL FOR PLAINTIFFS]: One can't.”
“[COUNSEL FOR PLAINTIFFS]: Our ultimate point is that of the claims which are asserted ‑ the claims that are asserted fall into two categories. There are claims for breaches of directors' duties and there are claims for insolvent trading, and it may be that the claims for insolvent trading are captured by the insolvency exclusion clause. But in relation to the claims for the breach of directors' duties, we say that the breaches of directors' duties led to the insolvency of the company, but they are not in any sense connected to. They're the cause of the insolvency; they're not in any way that's captured by this clause connected to the insolvency.
HIS HONOUR: Just so I can understand the issues, when you say on the first one the insolvent trading claims may be caught by this clause, are you conceding they are or not?
[COUNSEL FOR PLAINTIFFS]: I wouldn't go so far as to make a concession, but I would say that there is a much stronger claim to say that they are, and in respect of the arguments which I am presenting today, I am relying on the breaches of directors' duties.”
Given that the actual or alleged insolvency of the Company is essential or foundational to any claim against a director (or shadow director) of the Company pursuant to s 588G(2), and given that the pleading of the Insolvent Trading Claims recognises that this is so, I am satisfied that the Insolvent Trading Claims are excluded from cover under the Policy by operation of clause 4.11. They are “claims arising from or in any way whatsoever connected with the insolvency” of the Company, or are “claims arising from or in any way whatsoever connected with … its actual or alleged inability to meet any or all of its debts as and when they fall due”.
For those reasons, the Underwriters have established that they are entitled to disclaim liability under the Policy for the Insolvent Trading Claims.
The Breach of Duty Claims are pleaded as follows in the Proposed ASOC:
each of Mr Price and Mr Orren owed duties to the Company:
(a) to exercise his powers with the degree of care and diligence that a reasonable person would exercise; (b) to exercise his powers in good faith and for a proper purpose; and (c) not to improperly use his position or cause detriment to the Company; (d) (Proposed ASOC, [15], [26])
(a) failing to exercise any independent control of the Company; (b) failing to properly monitor and control the finances of the Company; (c) failing to conduct periodic reviews of the Company’s financial statements; (d) failing to ensure that the Company complied with its statutory obligations, including its taxation obligations, such as superannuation and payroll liabilities; (e) failing to maintain cash reserves to ensure liquidity; and (f) failing to prevent the Company from trading while insolvent; (g) (Proposed ASOC, [16], [27])
by reason of those breaches, the Company has suffered loss and damage, equal to the amount of the Debts incurred by the Company from trading while insolvent (being the same Debts totalling $2,563,344.36 as are the subject of the Insolvent Trading Claims) (Proposed ASOC, [17], [28]).
As noted above, the Underwriters contended that they were entitled to disclaim liability under the Policy for the Breach of Duty Claims for two reasons:
first, the Breach of Duty Claims were not notified during the period of insurance; and
secondly, and in any case, the Breach of Duty Claims fell within clause 4.11, by reason that all the claims for damage depend on the proposition that the alleged breaches of duty caused the Company’s insolvency.
“The policy only covers, under Insuring Clauses 1.1, 1.2(a) to (c), claims first made against the insured and notified to us in the period of insurance or discovery period if applicable.”
The Underwriters did not dispute that the Breach of Duty Claims are “claims” against an “insured”. However, the Underwriters disputed that those claims were “first made … and notified to [Dual as agent of the Underwriters] in the period of insurance or discovery period if applicable”.
As noted above, the “period of insurance” is from 30 June 2019 to 30 June 2020.
The “discovery period” is defined as follows in clause 9.15 of the Policy:
“9.15 Discovery Period means the period of time specified in Additional Benefit 2.9 Discovery Period during which time written notice may be given to us of any:
a) claim which is first made against the insured in that period for a wrongful act, employment practice breach or other conduct committed or allegedly committed prior to the end of the period of insurance or transaction;
b) direct financial loss which is first discovered in that period and results from dishonest acts or conduct committed or allegedly committed prior to the end of the period of insurance.”
“2.9 Discovery Period
If this policy is not renewed or replaced with a similar policy, the insured may give written notice to us of any claim, investigation or loss in respect of a wrongful act, employment practice breach, dishonest act or conduct occurring prior to the end of the period of insurance, during a discovery period immediately following the period of insurance of:
(a) 60 days, granted automatically with no additional premium payable; or
(b) at our discretion, 12 months, if the insured requests such period within 15 days after the end of the period of insurance and the insured tenders an additional premium of 100% of the annual premium level in effect immediately prior to the end of the period of insurance within thirty (30) days after the end of the period of insurance.”
The Policy was not renewed or replaced with a similar policy, as the Liquidator was appointed on 15 April 2020, before the end of the “period of insurance”. There was no evidence from the Plaintiffs that they had requested a “discovery period” of twelve months pursuant to clause 2.9(b). It follows that the only “discovery period” was the period of 60 days that was “granted automatically with no additional premium payable” pursuant to clause 2.9(a). This 60-day period expired on 29 August 2020.
There was only one notification provided to Dual as agent of the Underwriters during the period of insurance or the discovery period.
On 12 June 2020, the Liquidator sent a letter to Mr Price, which was forwarded to Dual on the same day (the June 2020 Notification).
The June 2020 Notification relevantly stated as follows:
“One of the obligations that I have as Liquidator of the Company is to investigate the reasons why the Company has been placed into Liquidation.
One of the areas in which I have centred my investigation is the trading position of the Company since the date of incorporation.
The Corporations Act 2001 (‘The Act’) provides for recoveries by a Liquidator against certain persons.
Section 588G of the Act provides that:
‘This section applies if:
(a) a person is a director of a Company at the time when the Company incurs at debt; and
(b) the Company is insolvent at that time, or becomes insolvent by incurring that debt, or by incurring at that time debts including that debt; and
(c) at that time, there are reasonable grounds for suspecting that the Company is insolvent, or would so become insolvent, as the case may be; and
(d) that time as at or after the commencement of this Act.’
Section 588G(2) of the Act provides that:
‘By failing to prevent the company from incurring the debt, the person contravenes this section if:
(a) the person is aware at the time that there are grounds for so suspecting; or
(b) a reasonable person in a like position in a company, in the company’s circumstances would be so aware.’
Section 588J of the Act allows a Court to impose an Order against a director for insolvent trading. Accordingly, I am entitled to proceed to recovery action against you on behalf of creditors.
I am aware of creditors of the Company as at the date of my appointment as Voluntary Administrator totalling $2,563,344.36. At the time of incurring these debts, you were appointed as Director of the Company.
Section 588M(2) of the Act provides that:
‘The company’s liquidator may recover from the director, as a debt due to the company, an amount equal to the amount of the loss or damage.’
I draw your attention to Section 588H of the Act that raises defences to such actions. On the evidence at this time, I do not believe defences under this section are applicable to you.
Based on the reasons outlined above I am of the opinion that the Company traded whilst it was insolvent and incurred debts in the sum of $2,563,344.36 during the period in which you were a director of the Company. This figure may increase or decrease based on subsequent investigations.
I request that you forward to the address of this office, within fourteen (14) days, a cheque in the amount of $2,563,344.36 made payable to ‘Clear Skies Corp Pty Limited (In Liquidation)’.”
As the Underwriters submitted, the June 2020 Notification is solely concerned with the Insolvent Trading Claims. In particular:
the only provisions of the Corporations Act to which the June 2020 Notification refers are provisions relating to insolvent trading (namely, ss 588G, 588H, 588J and 588M);
the only allegation made against Mr Price in the June 2020 Notification is that “the Company traded whilst it was insolvent and incurred debts in the sum of $2,563,344.36 during the period in which you were a director of the Company”; and
the only demand made in the June 2020 Notification is a demand for payment by Mr Price of the amount of the debts incurred while the Company was insolvent ($2,563,344.36). (This precisely matches the figure that the Plaintiffs seek from Mr Price and Mr Orren in the Proposed ASOC pursuant to s 588M(2) of the Act by way of relief for the Insolvent Trading Claims.)
The Plaintiffs did not point to anything in the text of the June 2020 Notification as constituting a notification in respect of the Breach of Duty Claims. Instead, the Plaintiffs relied on s 40(3) of the Insurance Contracts Act 1984 (Cth), which provides as follows:
Where the insured gave notice in writing to the insurer of facts that might give rise to a claim against the insured as soon as was reasonably practicable after the insured became aware of those facts but before the insurance cover provided by the contract expired, the insurer is not relieved of liability under the contract in respect of the claim, when made, by reason only that it was made after the expiration of the period of the insurance cover provided by the contract.
“a notification need not be limited to particular events and may be to a ‘problem’ described in general terms if that problem of itself may give rise to a claim, and notwithstanding that the quantum and character of such claims, or the identity of claimants, may not be known at the date of notification; and … whilst the insured necessarily has to be aware of circumstances which might reasonably be expected to produce a claim …, that does not ‘predicate that the insured needs to know or appreciate the cause, or all the causes, of the problems which have arisen, or the consequences, or the details of the consequences, which may flow from them’.”
The Plaintiffs did not identify any reference in the June 2020 Notification to “facts that might give rise to a claim” for breach of directors’ duties against Mr Price or Mr Orren, of the type made in the Proposed ASOC.
The only “facts that might give rise to a claim” against Mr Price which are identified in the June 2020 Notification are that “the Company traded whilst it was insolvent and incurred debts in the sum of $2,563,344.36 during the period in which you were a director of the Company”. I accept that those facts might give rise to a claim that Mr Price “failed to prevent the Company from trading whilst insolvent” (such as is pleaded in paragraph 16(e) of the Proposed ASOC), and that the Company, as a result, suffered loss and damage equal to the Debts (in the amount of $2,563,344.36) which were incurred by the Company while insolvent (as pleaded in paragraph 17 of the Proposed ASOC).
However, the problem is that any such claim is, like the Insolvent Trading Claims, a claim “arising from or in any way connected with the insolvency … of the company … [or] its actual or alleged inability to meet any or all of its debts as and when they fall due”. That is because it is essential, for the purposes of such a claim, to establish that the Company became insolvent, that it traded while insolvent, and that it incurred the specific Debts while insolvent. Accordingly, any such claim would be excluded from cover under the Policy pursuant to clause 4.11.
In order to avoid such a result, the Plaintiffs contended that, whereas the Insolvent Trading Claims were concerned with the period during which the Company was insolvent, the Breach of Duty Claims concerned the period prior to the Company becoming insolvent. The Plaintiffs put the point as follows in their written submissions:
“The breaches of director’s duties did not arise from the insolvency of the Company, they led to the insolvency of the Company.”
In oral address, the Plaintiffs submitted that: “in essence, the breach of directors' duties predates, and predates for a number of years, the company entering insolvency”.
However, insofar as this is said to be the “essence” of the Breach of Duty Claims, there are no “facts that might give rise to” such a claim in the June 2020 Notification, since that Notification does not contain any reference to any facts, matters or circumstances prior to the Company becoming insolvent, other than a generic statement by the Liquidator that he has been investigating “the trading position of the Company since the date of its incorporation”.
The Plaintiffs relied on a further letter sent by the Liquidator’s former solicitors to Dual on 13 November 2020, which stated as follows:
“Since the [June 2020 Notification], our client has identified further breaches of common law and statutory duties by Mr Price in addition to the breach of his duty to prevent insolvent trading.”
However, this letter was sent after the end of the period of insurance and after the end of the discovery period, and therefore cannot amount to a notification of a claim during such periods. Further, the terms of the letter make plain that the claims for breach of duty are claims which have only been identified by the Liquidator since the June 2020 Notification was sent, and that the June 2020 Notification was concerned solely with insolvent trading.
By reason of those matters, I accept the Plaintiffs’ contention that the Breach of Duty Claims were not notified to Dual during the period of insurance or the discovery period (except insofar as the alleged breach of duty consists of a failure to prevent the Company trading while insolvent, and any such claim is excluded from cover under the Policy by clause 4.11).
In case I have erred in concluding that there was no notification, during the period of insurance or the discovery period, of the Breach of Duty Claims (insofar as those claims concern the directors’ acts or omissions in the period prior to the Company becoming insolvent), I have considered below whether, if such claims were notified, they would be excluded from cover pursuant to cl 4.11 of the Policy.
As set out above, the only loss and damage which the Company is alleged to have suffered by the various breaches of directors’ duties is loss and damage equal to the amount of the Debts (totalling $2,563,344.36) that were incurred by the Company after it became insolvent.
The Plaintiffs’ case on loss and damage in respect of the Breach of Duty Claims was put as follows in oral address:
“HIS HONOUR: What is the consequence of the breach in terms of what loss and damage do you plead?
[COUNSEL FOR PLAINTIFFS]: We do say the loss and damage resulted in the company being unable to pay its debts as and when they fell due, so we don't resile from that. That's the loss that is claimed, and we say that had Mr Price, as the director, adhered to his directors' duties, then that circumstance wouldn't have arisen.
HIS HONOUR: Doesn't that mean that establishing insolvency is an essential part of your claim, and if you can't establish insolvency, there is no claim?
[COUNSEL FOR PLAINTIFFS]: We don't say it's essential that we establish insolvency to establish that Mr Price breached his directors' duties.
HIS HONOUR: No, but in terms of the gist of the action you're bringing being the one for damage.
[COUNSEL FOR PLAINTIFFS]: Clearly, the losses that we are claiming were debts of the company at the time it entered into administration …”
The Underwriters submitted that it followed that the Breach of Duty Claims “were (intimately) connected with the insolvency (or inability to meet its debts) of the Company”, adding that: “It cannot be submitted that something which caused insolvency was not connected with (or did not arise from) that insolvency”.
In this regard, the Underwriters referred to and relied on the decision of the Full Court of the Federal Court in AIG Australia Limited v Kaboko Mining Limited [2019] FCAFC 96. In that case, a clause in a policy of insurance excluded cover for “any Loss in connection with any Claim arising out of, based upon or attributable to the actual or alleged insolvency of the Company”.
The Full Court (Allsop CJ, Derrington and Colvin JJ) held (at [50]) that:
“for the purposes of the insolvency exclusion, a Claim does not arise out of, is not based upon and is not attributable to the insolvency of Kaboko or its inability to pay its debts unless the subject matter of the Claim has that character (being a character derived in the case of civil proceedings from the acts, errors or omissions that are the subject of the proceedings and the associated loss that may become the Loss if the proceedings are successful). The exclusion is not to be read as applying where the insolvency of Kaboko or its inability to pay its debts might be said to have motivated or led to the Claim being brought (for reasons other than providing a material part of the basis of the Claim).”
Their Honours referred to various matters in support of this conclusion, including (at [56]) that the qualifying words which specify the insolvency link describe a claim “arising out of, based upon or attributable to” the insolvency of Kaboko or its ability to pay its debts, and those words “indicate a focus upon the subject matter of the claim” (or the “foundation of the claims”: at [57]).
The Full Court held (at [58]) that the claims in Kaboko were “not founded upon any allegation of insolvency”, stating as follows:
“They are not claims that are based upon insolvent trading. They are not claims of breaches of fiduciary duty by directors that only arise in a context where the company is insolvent or cannot pay debts when they fall due. Therefore, it cannot be said on the basis of the specified acts, errors and omissions as pleaded and the agreed facts on the preliminary issue that any of the alleged breaches of duties by the Former Officers are of a character that they arise out of, are based upon or are attributable to Kaboko’s insolvency or its inability to pay debts when due.”
“… it is a loss which would not have occurred if Kaboko had not been insolvent and could have paid the Tranche A advances when they were due for repayment. Put another way, inherent in the claimed loss is an allegation that the breaches of duty caused the insolvency of Kaboko or its inability to repay to Noble the Tranche A advances when they were due for repayment because the nature of the loss claimed could not have arisen if Kaboko was solvent and able to repay the Tranche A advances when due. To that extent, the subject matter is properly described as arising out of Kaboko’s insolvency or inability to pay its debt to Noble. Therefore, if the claim to that loss is upheld and it thereby becomes a Loss for the purposes of the policy then it will be a Loss that is in connection with a Claim of the kind described in the insolvency exception. Therefore, the policy precludes that part of the claims made by Kaboko in the action.”
The Breach of Duty Claims in the present case are founded upon an allegation of the Company’s insolvency, or the Company’s inability to pay its debts, in that:
the claims for the loss and damage all depend upon the proposition that the various breaches of duty caused the Company’s insolvency or its inability to pay its debts when due; and
the losses claimed (being the amount of the Debts incurred to creditors from trading while insolvent) could not have arisen if the Company was solvent and able to pay its debts when due.
It follows that the Breach of Duty Claims are “claims arising from or in any way whatsoever connected with the insolvency … of the [Company] … [or] its actual or alleged inability to meet any or all of its debts as and when they fall due” and would therefore be excluded from cover under the Policy pursuant to cl 4.11 (even if, contrary to my findings, such claims had been notified during the period of insurance or the discovery period).
For the reasons given above, the Underwriters have established that they are entitled to disclaim liability under the Policy for the Insolvent Trading Claims and the Breach of Duty Claims. It follows, pursuant to s 5(4) of the TPC Act, the Court must refuse the Plaintiffs’ application for leave to bring proceedings against the Underwriters.
Accordingly, I make the following orders:
The Plaintiffs’ Notice of Motion filed 28 August 2025 be dismissed.
The Plaintiffs pay the Underwriters’ costs of the Notice of Motion.
The proceeding be listed for directions in the Corporations List on 15 December 2025.
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(2014) 251 CLR 640
(2016) 239 FCR 12
(1986) 6 NSWLR 390